The judge and the prosecutor went on Nancy Grace
GRACE: Joining us right now, Judge Eileen Gallagher. She is with the common pleas bench in Ohio. Judge Gallagher, thank you for being with us.
JUDGE EILEEN GALLAGHER: Good evening, Miss Grace.
GRACE: Why did you throw the case out of court?
GALLAGHER: The case was originally set for trial at 9:00 o`clock that morning, and the state`s witness, the alleged victim in this case, did not appear at the court until nearly 11:00 o`clock in the morning. After we conducted some conferences in chambers, the trial was reset for 1:00 o`clock in the afternoon. The prosecutor failed to appear at that time. And quite frankly, I don`t know if the victim was around, either. The case was called for trial. The state was not prepared to proceed, and...
GRACE: How do you know the state was not prepared if the state wasn`t there?
GALLAGHER: Well, they weren`t there.
GRACE: So they...
(CROSSTALK)
GALLAGHER: They weren`t prepared to...
GRACE: And you don`t know if the victim was there or not.
GRACE: She was there two hours late in the morning. I don`t know where she was in the afternoon.
GRACE: So for all you know, she was waiting at home.
GALLAGHER: She could have been.
GRACE: OK. Well, actually, something that you mentioned, it`s a quote from you, Judge -- "You don`t show up, too bad. Don`t treat me like a punk and not show up in court without giving us the courtesy of notifying us where you are." And you`re talking about the prosecutor.
GALLAGHER: Right.
GRACE: Why did you throw the case out because the prosecutor was late?
GALLAGHER: Well, the prosecutor presents the state -- presents the case on behalf of the state of Ohio. He wasn`t there. There`s no one else to handle his case.
(CROSSTALK)
GRACE: Well, Judge, I`m looking at the case summary, and you have already allowed not one, two, three, four, five, but six continuances on this case. Six times, you have allowed further notices. So instead of reprimanding the lawyer, you thought it was better to throw out a rape case, where the victim was 9 years old?
GALLAGHER: Well, We take all of our felony cases very seriously here, and if you want to know what happened with those continuances, they were granted because the state of Ohio, the prosecutor, failed to provide discovery for the defense. Also during that same timeframe, the prosecutor`s father was very ill and unfortunately died at a very young age. We were extremely accommodating to him.
GRACE: So your answer is to throw the case out of court?
GALLAGHER: Well, you`re suggesting that I granted continuances improperly. The only continuance made by the court was after I had lasix eye surgery and couldn`t see for two months. And that was the only time that the court continued the case. The state of Ohio failed to, again, play by the rules in providing discovery to the defense, and that was...
GRACE: Sounds like a whole lot of excuses! And your answer was to punish a 9-year-old victim!
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GALLAGHER: (INAUDIBLE) was absolutely unprofessional. They never called, and had they called, it certainly would have been a different situation.
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GRACE: A Cleveland sitting judge, Judge Eileen Gallagher, throws out a felony rape case. At the time of the alleged rape, the victim just 9 years old. Why? Because the prosecution was late to court. And there`s no doubt about that. The state was late to court. But throw out a rape case, for Pete`s sake?
Elizabeth, do we still have the judge with us? Judge, thank you for staying with us. I have in my hand a motion filed by the defense, and this is a response to the Department of Family Services. And in this, it states that you, the court, acknowledged this little girl victim had, quote, "credibility problems." Did you say that?
GALLAGHER: What I said was, because I had to review those documents in camera alone, and in order to provide them to the defense, I have to provide a reason why they should be given to the defense. And in view of the fact that this child had made a number of inconsistent statements to the Department of Children and Family Services, those documents were then turned over to the defense.
GRACE: Well, isn`t that the reason you turned over the documents, the fact that the alleged victim made inconsistent statements? That`s a part of Brady -- in other words, evidence that could help the defense.
GALLAGHER: Right.
GRACE: She makes inconsistent statements. But why do you take it upon yourself to comment this child had credibility problems? Isn`t that the sole province of the jury?
GALLAGHER: Well, it is and it isn`t. I had...
GRACE: Then why did you comment on it?
GALLAGHER: It`s apples and oranges here, Nancy. I have to do those in-camera inspections of records, and thereafter, if I hear the case, I have to rule a verdict based upon the evidence presented in the courtroom only.
GRACE: Yes, ma`am. I understand that. And I understand that you must hand over inconsistent statements, if they exist, but to comment on the victim`s credibility?
GALLAGHER: I had to tell them why...
GRACE: Is that grounds for recusal?
GALLAGHER: ... I was giving them those documents.
GRACE: Because of inconsistent statements. You didn`t have to go the extra mile and comment on the girl`s credibility, did you?
GALLAGHER: I did not comment on her credibility. I said that there were inconsistencies in her statement.
GRACE: Well, that`s not what this filing says.
GALLAGHER: Well, I...
GRACE: Both the state and the defense agree that you said that.
GALLAGHER: Well...
GRACE: Welcome back, everybody. I want to go straight back out to a principal in this case, Mark Schneider, the assistant prosecutor. Sir, could you please explain why your case was thrown out of court?
SCHNEIDER: ... thrown out of court because a judge made a ruling from the bench about a victim`s credibility, a nine-year-old rape victim who was brutally assaulted, before she had taken one piece of evidence. That`s what this boils down to. We were just trying to get this girl a fair trial.
GRACE: OK, hold on just one moment. We had a problem with your satellite feed. Could you repeat that, sir?
SCHNEIDER: This case was thrown out of court because a judge made an opinion known that she had of a victim, that she thought a nine-year-old brutally-raped victim was unbelievable, and she made that known before she had taken one piece of evidence. Every action we took from that point forward was to give this girl the fair trial she deserved.
GRACE: Now, sir, let me just play devil`s advocate here for just one moment, as the judge has been kind enough to come on the show and be held in contempt, why were you late for court?
SCHNEIDER: At 12:00, after the judge had made her opinion known on a prior occasion, the defense only then decided to try their case to the one person who had already rendered an opinion. At that point...
GRACE: Whoa, whoa, whoa, wait. Let`s explain that to the viewers. Bottom line: You claim -- and I`m talking to the prosecutor in this case - - you claim that, after the judge stated this girl had credibility problems, a nine-year-old little girl, suddenly the defense wanted a bench trial. In other words, they didn`t want a jury anymore, right?
SCHNEIDER: That`s correct.
GRACE: OK, then what happened?
SCHNEIDER: And they wanted that judge, who had already stated her opinion, to determine guilt or innocence in this case. At that point, we`re faced with a two-edged sword. We could go forward and let this case get thrown out of court by this judge or we could seek to get this girl a fair trail. We could seek to get this girl justice.
When I turned to that girl and explained the consequences, she asked me to fight for her, and I wasn`t about to let her down. And this office wasn`t going to let her down.
GRACE: Whoa, whoa, whoa, Mr. Schneider. With us, Mark Schneider, assistant prosecutor there in Cleveland, are you telling me the girl was in court? Because Judge Gallagher seems to have a concern the girl didn`t show up to prosecute.
SCHNEIDER: This case was set for trial six times. Two of those continuances were occasioned by the state; the other four were by either the court or the defense. In fact, we had been on hold due to the defense`s unavailability for four days.
It was set for a jury trial. That victim was ready to appear in court as early as 10:00 once we picked a jury. It was only after the judge had heard from the victim -- she knew the victim was there -- that the defense wanted to have the judge decide this case. And at that point, we were set to scramble and fight for this little girl.
